Richard Perry v F H Brundle and Others
| Jurisdiction | England & Wales |
| Judge | Judge Hacon |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] EWHC 678 (IPEC) |
| Docket Number | Case No: IP-2015-000090 |
| Date | 30 March 2017 |
| Court | Intellectual Property Enterprise Court |
[2017] EWHC 678 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
His Honour Judge Hacon
Case No: IP-2015-000090
Richard Perry appeared in person
Tim Austen (instructed by Collyer Bristow LLP) for the First and Second Defendants
Hearing dates: 27 March 2017
Judgment Approved
Introduction
On 27 March 2017, at the application of the first and second defendants (hereafter "the defendants") I granted a general civil restraint order ("GCRO") against the claimant ("Mr Perry"). In view of the seriousness of the order I said I would give my reasons in writing. I now do so.
Mr Perry has already been subject to an extended civil restraint order ("ECRO") granted by me on 25 September 2015, which expired on 25 March 2017. See the judgment of 2 October 2015, Perry v F H Brundle [2015] EWHC 2737 (IPEC); [2015] B.P.I.R. 1449.
Background to Mr Perry's application
The present proceedings have their origin in an action brought by the first defendant ("Brundle") against Mr Perry for unjustified threats of patent infringement: Case No. CC13P00980 ("the First Action"). Mr Perry counterclaimed for infringement of the patent and brought a Part 20 claim against the second and third defendants in the present action (respectively "Betafence" and "Britannia") also for infringement of the patent. On 6 March 2014 I gave judgment in the First Action [2014] EWHC 475 (IPEC). I found that Mr Perry's claim for patent infringement failed and that the claim against him for threats succeeded. Permission to appeal was refused by the Court of Appeal.
On 15 May 2015 Mr Perry started the present proceedings. In substance his claim amounted to a renewal of his allegation against the same three defendants that they had infringed the same patent. On 25 September 2015 I struck out Mr Perry's claim on the alternative grounds that the claim was res judicata and also that, had there been a cause of action, it vested in the Official Receiver. Mr Perry was by then bankrupt. On the same day I granted the ECRO against Mr Perry, giving my reasons in the judgment of 2 October 2015.
On 11 October 2016 Rose J refused Mr Perry permission to appeal the ECRO. Mr Perry's application for permission to appeal was renewed before Newey J on 9 March 2017. No copy of Newey J's order is on the file or was in the possession of either Mr Perry or the first and second defendants' solicitors, Collyer Bristow at the hearing three days ago, but Mr Perry informed me that permission to appeal was again refused by Newey J. As I have indicated, the ECRO has now expired anyway.
I should add that it is apparent from an order of Rose J dated 11 August 2016 that Mr Perry made an application for permission to bring an appeal out of time against my order striking out the present proceedings. Rose J made no order. Mr Perry informed me that he has not renewed his application to challenge the strike out and does not intend to do so.
The law relating to civil restraint orders
In the judgment of 2 October 2015 I first considered whether, sitting in the IPEC, I had jurisdiction to grant an ECRO. For the reasons set out at [16]–[22] I came to the view that I did. This was approved on appeal, see the Order of Rose J dated 11 October 2016 and the reasons therein stated. The jurisdiction to grant a GCRO is the same as for an ECRO, compare CPR PD3C paragraphs 3.1 and 4.1, so I have jurisdiction to grant a GCRO.
Comparing the grant of an ECRO and a GCRO further, CPR PD3C 3.1 provides that an ECRO may be made
"…where a party has persistently issued claims or made applications which are totally without merit."
The effect of an ECRO, broadly, is that the party who is subject to it must obtain the permission of the judge identified in the order issuing a claim or making an application concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made (see CPR PD3C 3.3).
As to a GCRO, CPR PD3C 4.1 provides:
" 4.1 A general civil restraint order may be made …
…
where the party against whom the order is made persists in issuing claims or making applications which are totally without merit in circumstances where an extended civil restraint order would not be sufficient or appropriate."
The effect of a GCRO is set out in CPR PD3C 4.3:
" 4.3 Where a party who is subject to a general civil restraint order –
(1) issues a claim or makes an application in a court identified in the order without first obtaining the permission of a judge identified in the order, the claim or application will automatically be struck out or dismissed
(a) without the judge having to make any further order; and
(b) without the need for the other party to respond to it;
(2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss that application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal."
In my earlier judgment I considered the law on the grant of ECROs and said this:
"[27] I draw from these authorities the following principles:
(1) When considering the appropriate order in relation to an application for a CRO, the court should engage in a graduated and proportionate response to the identified abuse.
(2) Where the application is for an extended CRO, the litigant against whom the order is sought must have made a minimum of three claims or applications which were totally without merit in order to be taken to have 'persistently' issued such claims or applications within the meaning of paragraph 3.1 of PD3C.
(3) Subject to that minimum, the persistence of the litigant in issuing such claims, in particular the likelihood that such persistence will be maintained in the future, is to be assessed by reference to his conduct as a whole.
(4) The categorisation of a claim or application as being totally without merit need not have been done at the time they were made; the court hearing the application for the CRO is entitled retrospectively to adjudge a claim or application to be totally without merit."
I added a further comment, referring to a judgment of Warren J in KL Communications Ltd v Fu [2015] EWHC 2026 (IPEC):
"[28] There is also an observation which I take from the judgment of Warren J in KL Communications, at [8]. A CRO should not in practice significantly deprive a litigant of any right to which he or she would otherwise be entitled. It acts as a filter to preclude the making of unmeritorious claims or applications. This ought to work in favour of all parties, including the litigant who is the subject of the order – especially where he is a litigant in person – by ensuring that their time and money are not wasted by initiatives doomed to failure."
In The Chief Constable of Avon and Somerset Constabulary v Benjamin Gray [2016] EWHC 2998 (QB), Warby J made five points about the provisions relating to GCROs, of which the fourth and fifth are relevant to the present case, the fifth also being consistent with Warren J's observation:
"(4) Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime.
(5) In that context, the fifth point is important. A GCRO is not, as some of Mr Gray's submissions would suggest, a bar on the bringing of any proceedings. It imposes a permission filter. Permission filters are a well-established feature of civil and criminal procedure. They are most common as a way of controlling the use of...
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